Karnataka High Court
Shivakumar @ Nataraj vs State Of Karnataka on 21 December, 2018
Equivalent citations: 2019 (1) AKR 477, (2019) 3 KCCR 2223
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL REVISION PETITION NO.1022 OF 2011
BETWEEN
Shivakumar @ Nataraj
S/o Siddalingaiah
Aged 30 years
R/at Malavalli Town
Thyagaraja Road,
Mandya District. ... Petitioner
(By Sri. Y. S. Shiva Prasad, Advocate)
AND
State of Karnataka, By
Kollegala Town Police Station,
Represented by SPP,
High Court Buildings,
Bangalore 560 001. ... Respondent
(By Sri. S.T. Naik, HCGP)
Crl.R.P. filed U/S. 397(ii) Cr.P.C praying to set aside
the order dated 16.01.2010 passed by the Civil Judge (Sr.
Dn.) and JMFC, Kollegal in C.C.No.36/2009 and order
dated 12.07.2011 passed by the District and Sessions
Judge, Chamarajanagar in Crl.A.No.2/2010.
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This CRL.R.P. having been heard and reserved for
orders on 14.12.2018, coming on for pronouncement, this
day, the court delivered the following:
ORDER
This Criminal Revision Petition has been preferred by the petitioner / accused under Section 397 (ii) Cr.P.C. praying to set aside the impugned order dated 16.01.2010 passed by the Civil Judge (Sr.Dn) and JMFC, Kollegal in C.C.No.36/2009 and confirmed by the order dated 12.07.2011 passed by the District & Sessions Judge, Chamarajanagara, in Crl.A.No.2/2010 and thereby acquit the petitioner. By the judgment of the Trial Court, the accused was convicted for an offence under Sections 279, 337 and 304A IPC and was sentenced to undergo three months simple imprisonment and to pay a fine of Rs.1,000/- for the offence under Section 279 IPC; to pay a fine of Rs.500/- for the offence under Section 337 IPC and to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/- for the offence under Section 304 A IPC, along with default clauses.
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2. Heard the learned counsel for the petitioner - accused and the learned HCGP for the respondent.
3. The factual matrix of this petition is as under:
On 08.03.2006 at about 6.00 p.m. in Kollegal Town, the complainant by name C. Shivaiah was traveling as a pillion rider in a Pulsar motorcycle bearing No.KA-10/H- 6282, which was ridden by the deceased Janakiram. It is stated that near Achgal Circle in front of Shoba Talkies, a Tempo bearing No.KA-09/9897 which was driven by its driver in a rash and negligent manner and in high speed, had hit the said Pulsar Bike from its back side, due to which the rider of the bike namely Janakiram was thrown from the vehicle and as a result sustained grievous injuries and succumbed to the injuries at the spot. However, the complainant Shivaiah had sustained simple injuries and has survived. Hence, the complainant presented a complaint regarding the said accident to the Kollegal Town Police Station.:4:
4. On the basis of the complaint, the Kollegal Town Police registered a case in Crime No.22/2006 for the offences punishable under Sections 279, 337 and 304(A) of IPC and after completion of investigation, the Investigating Officer filed a charge-sheet against the accused. Summons was issued and the accused appeared through counsel and was enlarged on bail. Charges were framed against the accused for the said offences and the accused pleaded not guilty and claimed to be tried. In order to establish the guilt of the accused, the prosecution in all examined 9 witnesses as PW-1 to PW-9 and got marked documents as Exhibits P1 to P8. Thereafter, the incriminating statements appearing against the accused have been examined as required under Section 313 Cr.P.C., but the accused has denied the truth of the prosecution adduced so far, but however did not lead any defence evidence. Subsequently, the Trial Court on hearing the arguments of the prosecutor and the defence counsel, framed the points for consideration and answered the same in the affirmative and convicted the accused for the offences under Sections 279, 337 and :5: 304(A) IPC and sentenced him as aforesaid. The said judgment when carried in appeal before the Sessions Judge, Chamarajanagar, the Appellate Court dismissed the said appeal confirming the judgment of conviction and sentence passed by the Trial Court. It is these judgments which are under challenge in the present revision petition.
5. The learned counsel for the petitioner contends that though the complainant PW-1 had deposed that the tempo came in a high speed and hit the motor cycle from the back side, it cannot be said that driving at high speed would amount to rash and negligent driving.
Further, the rider as well as the pillion of the bike could not have seen the tempo which was allegedly coming from their back side. Hence, the pillion rider - complainant could not have claimed that the tempo was driven in high speed and in a rash and negligent manner. The said claim could not be believed also due to the fact that there was a curve prior to the place of the alleged accident and due to the said curve, any vehicle would lower its speed at that curve. Hence, it cannot be said :6: that the tempo was driven at a high speed and caused the accident.
6. Added to it, it is the contention of the learned counsel that the rider of the pulsar motor bike, namely the deceased was drunk when he was riding the bike as a result of which he had lost control which was the cause for the accident. The postmortem report Exhibit P-4 of the deceased confirms the presence of alcohol in the stomach of the deceased. This confirms the fact that the deceased in the influence of alcohol, while riding the bike, had lost balance and fallen and thereby sustained injuries and succumbed to the injuries. Thus, it is contended that the probability of he having fallen on the road and sustained injuries is also a possibility which has been lost sight of by the Trial Court as well as the Appellate Court. The fact that the deceased was a habitual drunkard is further proved from the evidence of PW-2 who is a hearsay witness and a son of the deceased. PW-2 in his evidence has also told that there was a bridge which leads to the :7: road towards M.M. Hills and thereby that there was a curve.
Further PW-3, a panch witness to Exhibit P-2 spot mahazar did not reveal the details regarding either of the vehicles involved in the accident and also has failed to mention the boundaries. Further PW-4, an eye-witness to the alleged incident and also informant to PW-2, son of the deceased who was also a friend of PW-2 is a planted witness who though admitted that there was a curve towards Shoba Talkies when proceeding from Achgal Lodge, however, has deposed to the effect that he did not see the speed of the alleged motor cycle but has told that the tempo was coming in high speed. Then again PW-2 has stated that he was not present at the time of the accident. Further, PW-5 another eye-witness has even failed to identify the accused and as such, he contends that importance cannot be attached to this witness.
7. The learned counsel further contends that from the Motor Vehicles Accident report marked at Exhibit P-8, it is noticed that there is no damage to both the vehicles :8: involved, namely the pulsar bike as well as the offending tempo. If really the tempo was driven at high speed and had hit the bike, due to the collision there would have been at least a little bit of scratches or damages to both the vehicles involved. This fact also has been lost sight of by the Trial Court as well as the Appellate Court.
Further, PW-9 the Investigating Officer has himself admitted that he did not mention the engine or chassis number of the motor bike or the offending tempo, which was also a necessity which has not been done.
On all these grounds urged, the learned counsel for the petitioner / accused prays that the judgments of both the courts below be set aside and the accused be acquitted of the offences charged against him.
8. Per contra, the learned HCGP for the State justifies the impugned judgment of conviction and sentence passed by the Trial Court and which has been confirmed by the Appellate Court and submits that both the courts below have rightly appreciated the evidence on :9: record and have come to a conclusion that the accused had caused the accident. The accused being the driver of the offending tempo bearing Registration No. KA-09/9897, had driven the same in a rash and negligent manner so as to endanger human life and dashed the pulsar bike from its back side due to which Janakiram, the rider sustained severe injuries and succumbed at the spot and the pillion rider / PW-1 the complainant had sustained simple injuries. The punishment imposed being commensurate with the gravity of the offence committed by the accused, the learned HCGP seeks to dismiss the revision petition. Hence, the learned HCGP supports the judgments passed by the Trial Court which has been confirmed by the Appellate Court and submits that the said judgments being just and proper, the same do not call for any interference by this Court in this revision petition.
9. On hearing the learned counsel for the revision petitioner / accused as well as the learned HCGP and on an examination of the oral and documentary evidence on record, it is seen that PW-1 Shivayya, who was working as : 10 : Head Constable was the pillion rider along with the deceased Janakiram. He has deposed to the effect that he was acquainted to the deceased Janakiram and on the date of the accident, PW-1 was standing near Achgal Circle in order to proceed to his office. Janakiram who had come there on his pulsar bike on questioning PW-1, had offered to drop the said PW-1 to his office and as a result he sat as a pillion and they proceeded further. After proceeding for about 300 feet, that a goods tempo which was coming at high speed behind them had dashed the said bike as a result of which the deceased Janakiram fell to the right side of the bike and PW-1 had fallen to the left side. But however, PW-1 was able to get up. Hence, when he got up and saw the rider, he saw that Janakiram the rider was profusely bleeding from his nose and mouth and died instantaneously. The tempo which had caused the accident had stopped at a distance. Then PW-1 came to know the name of the driver of the tempo and then lodged a complaint in this regard.
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If the accused / petitioner had not hit the pulsar bike, there was no necessity for him to stop the tempo. Hence, there is no doubt that the offending tempo had hit the pulsar bike, as a result of which the rider as well as the pillion had fallen down. But though the pillion escaped with minor injuries, the rider succumbed to the injuries and died on the spot. However, the fact that there was no damage caused to both the vehicles as a result of the impact, has to be taken into consideration.
10. PW-2 Rajesh, son of the deceased Janakiram had deposed to the effect that at about 6.15 p.m. on 8.3.2006 when his father was proceeding from Achgal Lodge in Kollegal in his motor cycle, that in front of Shoba Talkies a tempo had come and hit his father's bike from behind as a result of which his father had sustained injuries and died on the spot. The said incident was told to PW-2 by his friend Nithin. Hence, he is only a hearsay witness. He has also told regarding the fact that his father Janakiram was a habitual drunkard. : 12 :
The fact that the deceased Janakiram was a habitual drunkard and as per the postmortem report the presence of alcohol in his stomach was also established, also cannot be lost sight of. The accident could have occurred due to the drunkenness of the rider of the motor cycle by suddenly deviating from the straight path, which had led to the tempo which was coming from behind dashing the pulsar bike. Hence, the driver of the tempo cannot be wholly attributable to the occurrence of the accident.
11. Further, it is seen that PW-1 C. Shivaiah the complainant has stated in his evidence as per Exhibit P-1 the complaint filed by him. PW-2 Rajesha, is the son of the deceased who is a hearsay witness. PW-3 Hoovaiah Murthy, panch witness to Exhibit P-2 spot panchanama, PW-4 Nithin and PW-5 Madhusudhan are eye-witnesses to the accident. In their evidence, they have categorically stated regarding the manner in which the accident occurred, speed and rash and negligent driving of the driver of the tempo, in a corroborative manner. Even I : 13 : find no material contradiction in their cross-examination to disbelieve their evidence.
The accused has been convicted for the offences under Sections 279, 337 and 304A IPC. In this revision petition it is relevant to extract Sections 279, 337 and 304-A IPC for the purpose of ingredients as to constitute the offence.
"279. Rash driving or riding on a public way.--Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
337. Causing hurt by act endangering life or personal safety of others.--Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine : 14 : which may extend to five hundred rupees, or with both.
304A. Causing death by negligence.--Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
The essential ingredients of Section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be such so as to endanger human life or likely to cause hurt or injury to any person. As regards the offence punishable under Section 304A IPC, the point to be established is that the act of the accused was responsible for the death and that such act of the accused must have been rash and negligent although it did not amount to culpable homicide. To establish the offence either under Section 279 or Section 304A, the commission of a rash and negligent act has to be proved. The only distinction being that in Section 279, rash and negligent act relates to the manner of driving or riding on a public way while the offence under Section : 15 : 304A extends to any rash and negligent act falling short of culpable homicide. The rashness or negligence which needs to be established is something more than a mere error of judgment. There is also a distinction between rashness and negligence. In that, rashness conveys the idea of doing a reckless act without considering any of its consequences whereas negligence connotes want of proper care.
12. In so far as offence under Section 304-A of IPC is concerned, the provisions of this section apply to cases where there is no intention to cause death, and no knowledge that the act done in all probability would cause death. Section 304-A postulates a rash and negligent act entailing death of another. The word 'negligence' denotes, and should be used only to denote, such blameworthy inadvertence; and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of the injury who may sue him in a tort for damages also. There is no criminal liability for harm thus caused by inadvertence.
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13. In the case on hand, apart from a bare statement made by a witness that the vehicle was being driven at a high speed, there was no attempt made to establish that there was any rash or negligent act on the part of the driver of the vehicle. The drunken state of the deceased might have attributed to the accident. However, the accused was convicted by the Trial Court under Sections 279, 337 and 304-A of IPC.
It is seen that the rider of the motor bike Janakiram died on 8.3.2006 at about 6.00 p.m. at the scene of crime as narrated in the complaint as well as from the inquest proceedings held over the dead body. But, the scene of crime is a place where there is heavy vehicular movement frequently and the accident spot is situated opposite to the bus stand in Kollegal Township and on the main road in front of Shoba Talkies there is Achgal Circle, where the tempo bearing No.KA-09/9807 is said to have hit the motor bike of Janakiram the rider, who succumbed to the injuries on the spot.
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I find that the judgment rendered by the Trial Court in C.C.No.36/2009 relating to the aforesaid offences and so also the judgment rendered by the Appellate Court in Crl.A.No.2/2010 confirming the judgment of conviction and order of sentence passed by the Trial Court, are found to suffer from infirmities and certainly there is a miscarriage of justice. Hence, the judgments of both the courts below requires to be re-visited by scanning the entire material evidence available on record and so also the documents placed by the prosecution to prove the guilt of the accused.
14. Keeping in view the grounds urged by the learned counsel for the petitioner, I find that the conviction and sentence held against the accused under Sections 279 and 304A IPC requires intervention in view of the aforesaid reasons, in view of the infirmities found in the impugned judgments. But however, the conviction in so far as the offence under Section 337 IPC wherein PW-1 complainant sustained some injuries is concerned, does not call for any interference.
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In view of the peculiar facts and circumstances of the case and so also the evidence produced by the prosecution relating to the aforesaid offences are concerned, in this revision petition the impugned judgment rendered by the courts below requires to be re- visited in so far as the offence under Sections 279 and 304A IPC. Accordingly, I proceed to pass the following:
ORDER The Criminal Revision Petition filed by the accused under Section 397(ii) Cr.P.C. is hereby allowed in part. Consequently, the order of conviction and sentence passed by the Trial Court in C.C.No.36/2009 dated 16.01.2010 convicting the petitioner / accused for the offence under Sections 279 and 304A IPC, which was confirmed by the Appellate Court, is hereby set aside. In so far as the offence under Section 279 IPC is concerned, the sentence to undergo simple imprisonment of three months is hereby set aside. However, the sentence in so far as payment of fine of Rs.1,000/- for the offence under Section 279 IPC shall remain intact.: 19 :
Further, the sentence imposed by the Trial Court under Section 304A IPC to undergo simple imprisonment of six months and to pay a fine of Rs.1,000/- is concerned is set aside. However, the petitioner / accused is sentenced to pay a fine of Rs.25,000/- for the offence under Section 304A IPC, which amount shall be deposited before the Trial Court within a period of one month from the date of receipt of a copy of this order. In default to pay the fine amount, the accused shall undergo simple imprisonment for a period of six months. The conviction and sentence in so far as the offence under Section 337 IPC imposed by the Trial Court and confirmed by the Appellate Court, shall remain unaltered. On deposit of Rs.25,000/- the same shall be disbursed to PW-2 Rajesh, the son of deceased Janakiram, on proper identification.
Sd/-
JUDGE KS